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Prisoner Education Guide

Prison Legal News: September, 2014

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Volume 25, Number 9

In this issue:

  1. Modern-Day Slavery in America’s Prison Workforce (p 1)
  2. Texas: Unconstitutional to Revoke Probation Due to Refusal to Self-Incriminate During Polygraph or Therapy (p 10)
  3. From the Editor (p 12)
  4. Private Debt Collection Companies Contract with District Attorney’s Offices (p 14)
  5. CCA Has Long History of Wage Violations, Poor Treatment of Employees (p 18)
  6. Do Residency Bans Drive Sex Offenders Underground? (p 20)
  7. Settlement Opens Georgia Courtrooms to the Public (p 22)
  8. Sentence Reductions for “Snitching” Undermine U.S. Justice System (p 24)
  9. New York Judge Unseals Attica Prison Riot Records – Sort of (p 28)
  10. Selection and Retention Process for Tennessee Appellate Court Judges Challenged (p 30)
  11. New Report Cites Fewer HIV-Positive State and Federal Prisoners (p 31)
  12. BOP Criticized for Failing to Oversee Healthcare Administrator at FCC Butner (p 32)
  13. South Florida Landlord Bucks Trend, Offers Housing to Sex Offenders (p 34)
  14. Massachusetts: Acquittal on Additional Sex Offense Doesn’t Trigger Reevaluation of Sex Offender Classification (p 34)
  15. Fifth Circuit: Prisoner Who was Raped May Proceed with Lawsuit against Lock Company (p 35)
  16. Eleventh Circuit Tailors Turner for Censorship Claims at Civil Commitment Center (p 36)
  17. Transferred Prisoner May Sue Oklahoma Officials in Oregon Court (p 36)
  18. Former New Mexico State Senator Released from Prison (p 37)
  19. Eighth Circuit Upholds Injunction Over Cameras in Restrooms at Civil Commitment Center (p 38)
  20. First Circuit Dismisses Appeal of Court’s Failure to Sanction Federal Prosecutor (p 38)
  21. Alabama Work Release Transportation, Medical and Drug Screen Costs Not “Incidental to Confinement” (p 40)
  22. Seventh Circuit Upholds Dismissal of Suit Over Placement on Suicide Watch (p 40)
  23. Eighth Circuit Holds No SORNA Registration Requirement after Leaving U.S. (p 42)
  24. Fourth Circuit Finds PLRA Attorney Fee Cap Constitutional (p 42)
  25. Alabama DOC Short Hair Policy Does Not Violate RLUIPA (p 43)
  26. Texas: Clerk May Not Bill Defendant for Attorney Fees Not Ordered by Court (p 44)
  27. Fifth Circuit: “Mailbox Rule” Applies to Texas State Habeas Petitions (p 44)
  28. Fifth Circuit Holds Prison Guard’s Injury-Causing Reckless Driving States Nonfrivolous Claim (p 45)
  29. Courts Struggle with Child Pornography Restitution Following Supreme Court Ruling (p 46)
  30. Prison Labor Boosts Wal-Mart’s Profits Despite Pledge (p 48)
  31. $2.85 Million Jury Verdict for Suicide at Missouri Jail (p 49)
  32. Incarceration is Excusable Default in New York Housing Court Proceeding (p 50)
  33. Recidivism Performance Measures for Private Halfway Houses in Pennsylvania (p 50)
  34. Some GPS Monitoring Devices Capable of Audio Recording (p 52)
  35. Indiana Supreme Court Holds Agreed Court Order with Prosecutor is Binding on DOC (p 52)
  36. Some States Refuse to Implement SORNA, Lose Federal Grants (p 54)
  37. Volunteers Help Prisoners Vote at D.C. Jail (p 54)
  38. News in Brief (p 56)

Modern-Day Slavery in America’s Prison Workforce

Why can’t we embrace the idea that prisoners have labor rights?

by Beth Schwartzapfel

Laurie Hazen has bad taste in men. “They’re my downfall,” the 41-year-old jokes in her Massachusetts accent. “I have to really stay single.” An ex-boyfriend first introduced her to prescription drugs, she says, a habit she maintained through the course of another relationship, with another addict, and through two stints in prison, most recently in 2012 for writing fake prescriptions.

When she arrived at the Massachusetts Correctional Institution in Framingham, Hazen left behind a job as a records manager for a fiber-optics company. Her $14-an-hour salary had covered food, utilities and rent on the modest apartment she shared with her boyfriend and her teenage son. She would have been putting some money away, too, if her paycheck hadn’t also been covering the couple’s drug habit. As it was, like many prisoners, she went to prison with no savings and, because her boyfriend was locked up too, had no one on the outside to send her money. Her son went to live with his dad.

After two weeks in prison, Hazen could apply for a job. Because her sentence was less than a year, she ...

Texas: Unconstitutional to Revoke Probation Due to Refusal to Self-Incriminate During Polygraph or Therapy

Texas: Unconstitutional to Revoke Probation Due to Refusal to Self-Incriminate During Polygraph or Therapy

by Matt Clarke

On May 8, 2013, the Texas Court of Criminal Appeals held that a probationer’s term of community supervision cannot be revoked because he had refused to answer incriminating questions while taking a lie detector test or during sex offender group therapy.

Michael Edward Dansby, Sr. received five years on deferred adjudication community supervision (DACS) after he entered into a plea agreement that reduced a charge of aggravated sexual assault to indecency with a child. The DACS conditions required him to complete a sex offender treatment program (SOTP) and submit to polygraph examinations. In the year he was on DACS, Dansby attended over 50 therapy sessions and took two “maintenance” polygraphs designed to ascertain whether he was complying with the requirements of his supervision.

Nine months into his placement on DACS, Dansby was ordered to submit to a polygraph examination to determine his sexual history. When it became apparent that he would be asked questions about prior, un-adjudicated sexual offenses he might have committed, Dansby informed the polygraph examiner that his “attorney told him not to say anything that might result in prosecution.” ...

From the Editor

From the Editor

by Paul Wright

Since its inception, Prison Legal News has been reporting on prison slavery and the exploitation of prison slave labor. This month’s cover story continues that tradition. As we have repeatedly noted, the 13th Amendment to the U.S. Constitution did not abolish slavery; rather, it limited it to those who have been convicted of a crime – creating what the Virginia Supreme Court once called “slaves of the state.”

It is important to remember the 60,000 prisoners toiling in prison industry programs for little or no pay, and the less than 5,000 prisoners who perform work for private companies. But even more important are the 2.2 million prisoners who have been removed from the U.S. labor market entirely. If these prisoners were counted as part of the labor market, unemployment rates would be far higher than they are today.

The American fixation on prison slave labor is difficult to understand from a ration-al perspective, since financially it is a money loser. It does a poor job of fulfilling its stated goal of reducing recidivism, and for a police state that constantly whines about the need for total control, passivity ...

Private Debt Collection Companies Contract with District Attorney’s Offices

Private Debt Collection Companies Contract with District Attorney’s Offices

by David M. Reutter

Numerous lawsuits have been filed against companies that contract with prosecutors to collect debts in bad check cases because, opponents say, the firms contact debtors on official district attorney letterhead and use draconian tactics such as harassing people and threatening them with jail time if they don’t pay the debts they owe plus additional fees.

Consumer protection groups claim the practices used by such companies, including California-based CorrectiveSolutions and Missouri-based BounceBack, would be illegal were it not for legislation passed by Congress following a vigorous lobbying campaign in which one of the companies spent hundreds of thousands of dollars to influence members of the U.S. House and Senate.

Critics say efforts by local governments to reduce costs and increase revenue have driven them to enter into contractual agreements that effectively give private firms law enforcement power and authority over citizens. Such collaborations allow the companies to profit from fees, debt collection and even public safety functions.

Privatization and outsourcing are not new to local governments; many have turned to private companies in recent decades for garbage collection, or to manage utilities such as water or park ...

CCA Has Long History of Wage Violations, Poor Treatment of Employees

CCA Has Long History of Wage Violations, Poor Treatment of Employees

On August 20, 2014, Corrections Corporation of America (CCA), the nation’s largest for-profit prison operator, issued a press release that attempted to put a positive spin on over $8 million in back wages the company had agreed to pay to employees at one of its facilities.

According to the U.S. Department of Labor (DOL), CCA had paid 30 to 40 percent less than required under rules for federal contractors to workers at the company’s California City Correctional Center. CCA was also accused of failing to make required payments to employees’ retirement and health and life insurance accounts, as well as violations related to “inaccurate recording of breaks, lunches and overall hours worked,” according to the Associated Press. Some employees will receive more than $30,000 in back pay.

“The people that get these federal monies from a federal agency to get one of these contracts have to abide by the wage rates,” stated Eduardo Huerta, assistant director of the DOL’s wage and hour division.

CCA claimed the $8 million payment for back wages was due to a “retroactive contract modification” by federal officials, and said it had ...

Do Residency Bans Drive Sex Offenders Underground?

Do Residency Bans Drive Sex Offenders Underground?

by Steven Yoder

Early last year, Los Angeles set aside a sliver of land in its Harbor Gateway neighborhood for the city’s newest and smallest park: two jungle gyms on a fifth of an acre.

The project was more than just an effort to increase the city’s green space. City Council members made clear that one of the park’s principal reasons for existence was to force 33 people on the California sex offender registry who were living in a nearby apartment building to move out. State law bars those on its registry from living within 2,000 feet of a park or school.

“We came together, working with the police department, to problem-solve, to send a message that Harbor Gateway cannot be dumped upon with a high number of registered sex offenders,” councilman Joe Buscaino said at the park’s opening.

But the state ban itself already clusters registrants into a limited number of areas, according to a September 2011 report by the California Sex Offender Management Board, which was created by the state legislature to advise it on sex offender policies.

California hasn’t been alone in its tough approach to ensuring that formerly incarcerated sex offenders pose ...

Settlement Opens Georgia Courtrooms to the Public

Settlement Opens Georgia Courtrooms to the Public

by David M. Reutter

Human rights groups have applauded efforts to open Georgia courts to members of the public, putting an end to a widespread practice of courtrooms being declared off limits – a practice that was condemned as a violation of the Sixth Amendment because it erodes the public’s right to observe the judicial system.

In November 2013, Superior Court judges in the Cordele Judicial Circuit – which includes Ben Hill and Crisp counties – agreed to a settlement that resolves a class-action suit filed on behalf of citizens who were prohibited from attending court hearings. The lawsuit was brought by the Atlanta-based Southern Center for Human Rights (SCHR). See: Fuqua v. Pridgen, U.S.D.C. (M.D. Ga.), Case No. 1:12-cv-00093-WLS.

The settlement followed two rulings by U.S. District Court Judge Louis Sands, who denied motions to dismiss the class-action suit.

“Judge Sands has clearly stated that the public has a right to view court proceedings, and after a long and hard road, the judges in Ben Hill and Crisp counties have finally seen the light,” said SCHR attorney Gerry Weber. “A closed courtroom is one that ...

Sentence Reductions for “Snitching” Undermine U.S. Justice System

Sentence Reductions for “Snitching” Undermine U.S. Justice System

by Derek Gilna

Imagine this scenario: Drug Enforcement Administration (DEA) agents bust a small-time drug dealer for, let’s say, nickel-and-diming in heroin. They take him to booking, run his fingerprints and discover this is his third arrest. As a multiple offender facing a long stretch in prison and with a public defender at his side, the suspect offers a deal.

“Cut my sentence,” he says, “and I’ll give you my distributor.”

The lead agent and his partner glance at each other. Here it is: a chance to nail the slippery kingpin who runs a multi-million dollar heroin ring that covers three states, but who has somehow managed to elude capture again and again. Never mind that coincidentally their case-closure rate will skyrocket, making them look good. There is a brief pause as the lead agent again glances at his partner, then back at our suspect.

“Done,” he states, closing the deal.

Fiction, you say? The oft-repeated storyline to the take-your-pick selection of seemingly endless TV crime dramas?

You might think so, and you’d be right. But in the daily trenches of law enforcement, this scenario is not as ...

New York Judge Unseals Attica Prison Riot Records – Sort of

New York Judge Unseals Attica Prison Riot Records – Sort of

by Joe Watson

A New York state judge has ordered the release of hundreds of pages of documents related to the investigation of the 1971 riot at the Attica Correctional Facility, but not before striking enough information from the records as to make them meaningless – despite pleas from state Attorney General Eric Schneiderman that it is time to give closures to families and victims of the uprising and its bloody aftermath.

The documents in question are volumes II and III of the Meyer Commission Report, which contain grand jury testimony related to the retaking of Attica by the New York State Police and prison guards. The commission was appointed by then-Governor Hugh Carey and headed by state court judge Bernard S. Meyer. Thirty-two prisoners and 11 guards were killed during the rebellion and scores were wounded, many critically.

The 570-page report, issued in 1975, concluded that while 62 prisoners had been indicted on various charges following the riot, a grand jury also should have considered charges against law enforcement officers. Only one state trooper was indicted by the grand jury – for reckless endangerment.

The commission stressed, however ...

Selection and Retention Process for Tennessee Appellate Court Judges Challenged

Selection and Retention Process for Tennessee Appellate Court Judges Challenged

by Christopher McWhorter

In the State of Tennessee, judges are elected. Before incumbent appellate court judges are placed on the ballot, however, they must be evaluated by the Judicial Performance Evaluation Committee (JPEC), which recommends whether they should be retained or replaced. “Retain” results in a retention election and a yes or no vote for the candidate, while “replace” means the candidate participates in a contested popular election. This process is part of the state’s judicial selection and retention system known as the “Tennessee Plan.”

State law requires the JPEC to be comprised of a cross-section of the population. The committee is composed of nine people – three judges, three attorneys and three non-attorneys – from different regions of the state. The JPEC members are also required to “approximate the population of the state with respect to race and gender,” pursuant to T.C.A. § 17-4-201(b)(6).

According to a 2010 census, Tennessee’s population is 52% female and 22.4% non-white; however, the JPEC includes only two women and one non-white member.

Well-known and relentless Nashville attorney John Jay Hooker, who has filed numerous challenges to ...

New Report Cites Fewer HIV-Positive State and Federal Prisoners

New Report Cites Fewer HIV-Positive State and Federal Prisoners

by Matt Clarke

A recent study revealed that the number of HIV-positive prisoners in both state and federal facilities nationwide is declining and, for the first time, the AIDS mortality rate for prisoners has fallen below the national average among the general population. The findings, presented in a Bureau of Justice Statistics report published by the U.S. Department of Justice, reflect a significant drop in the number of AIDS-related prisoner deaths.

The report, “HIV in Prisons, 2001-2010,” documents a 10-year, 16 percent decline in the rate of HIV infections in state and federal prisons – from 194 per 10,000 prisoners at the end of 2001 to 146 per 10,000 at the end of 2010.

The reduction in AIDS-related deaths was even more dramatic, falling an average 16 percent per year among the states that reported such deaths during the same ten-year period. The study cited a drop in the rate of AIDS-related prisoner deaths from 24 per 100,000 population in 2001 to only five per 100,000 in 2010.

The steep decline means that in 2009, the AIDS mortality rate among state prisoners – six per ...

BOP Criticized for Failing to Oversee Healthcare Administrator at FCC Butner

BOP Criticized for Failing to Oversee Healthcare Administrator at FCC Butner

by Derek Gilna

The federal Bureau of Prisons (BOP) is facing criticism for its apparent failure to adequately oversee a Florida-based company responsible for coordinating the payment of BOP bills for prisoner medical care in North Carolina.

Before it went into receivership, MDI Holdings, Inc. of Ponte Verde Beach, Florida was a health care technology and analysis company that administered medical care for some 5,000 prisoners at the Federal Correctional Complex in Butner, North Carolina. The BOP’s contract with MDI was the company’s largest; the actual medical care at Butner was subcontracted to Duke University Health Center and a number of private practitioners.

MDI was successful for a number of years. Sales in 2009 reached $97 million, for example. But shortly thereafter the firm experienced a series of events that culminated in the expiration of its contract with the BOP in July 2012. When that contract was not renewed, the financial house of cards holding the company together collapsed.

The court-appointed receiver tasked with cleaning up the mess was Ronald Winters, a managing director with the Alvarez & Marsal Healthcare Industry Group in New York. The main challenge that ...

South Florida Landlord Bucks Trend, Offers Housing to Sex Offenders

South Florida Landlord Bucks Trend, Offers Housing to Sex Offenders

Laws that restrict where sex offenders can live when they are released from prison leave many homeless, but one south Florida apartment manager is providing housing opportunities by leasing apartments to offenders on liberal terms.

“I just believe that everybody deserves a second chance,” said Pamela Eaton, the manager of Fairfield Apartments in south Fort Myers. She indicated her goal is to help sex offenders become independent and productive citizens, “because everybody makes mistakes.” She considers post-release housing one step in that direction.

Restrictive ordinances such as those in Miami-Dade County have made the area virtually off limits to sex offenders, which in the past forced some to live under the Julia Tuttle Causeway bridge. [See: PLN, March 2011, p.13; Dec. 2009, p.14; July 2009, p.36; June 2008, p.1].

Residency restrictions in Lee County, which are the same as under Florida state law, prohibit sex offenders convicted of crimes involving minors from living within 1,000 feet of schools, playgrounds, parks or other places where children congregate – leaving few housing options available. Further, many landlords are reluctant to rent to sex offenders, and ...

Massachusetts: Acquittal on Additional Sex Offense Doesn’t Trigger Reevaluation of Sex Offender Classification

Massachusetts: Acquittal on Additional Sex Offense Doesn’t Trigger Reevaluation of Sex Offender Classification

by Matt Clarke

On September 11, 2013, the Massachusetts Supreme Court held that a prisoner who had been convicted of a sex offense, then given a level three classification by the Sex Offender Registry Board (SORB) due to a more serious pending sex charge, was not automatically entitled to be reclassified following his acquittal on the latter charge.

John Soe, a registered sex offender in Massachusetts, was charged with multiple counts of raping, attempting to rape and committing indecent assault and battery on his 11-year-old stepdaughter. While on bail awaiting trial on those charges, he pleaded guilty to sexually touching the 16-year-old daughter of a friend and was placed on probation.

Following that conviction, the SORB notified Soe of its preliminary decision to classify him as a level three sex offender – the most dangerous type of offender with the highest risk of reoffending. He requested an administrative review and asked the review to be stayed until the more serious charges involving his stepdaughter were resolved.

The SORB denied the request, considered a previous interview with his stepdaughter and conducted a hearing. Soe’s attorney told the board ...

Fifth Circuit: Prisoner Who was Raped May Proceed with Lawsuit against Lock Company

Fifth Circuit: Prisoner Who was Raped May Proceed with Lawsuit against Lock Company

by Matt Clarke

In a July 9, 2013 opinion, the Fifth Circuit Court of Appeals held that the statute of limitations in a federal lawsuit against a manufacturer of cell door locks at a county jail, brought by a former prisoner who was allegedly raped at the facility when he was nineteen years old, did not start to run until he turned twenty-one.

On August 2, 2007, while incarcerated at Mississippi’s Harrison County Adult Detention Center, Aaron Wayne Page, then 19, claimed he was raped by another prisoner who was able to leave his own cell and enter Page’s cell due to faulty door locks. In February 2009, Page filed a lawsuit in federal court. Two years later he amended the complaint to include RR Brink Locking Systems, Inc., the manufacturer of the cell door locks, alleging that the faulty locks made Brink liable for negligence, strict liability and breach of warranty.

Brink filed a motion for summary judgment on the grounds that Mississippi’s three-year statute of limitations period for personal injury and products liability claims, which controlled in this case, had run before the lawsuit was ...

Eleventh Circuit Tailors Turner for Censorship Claims at Civil Commitment Center

Eleventh Circuit Tailors Turner for Censorship Claims at Civil Commitment Center

by David M. Reutter

On September 23, 2013, the Eleventh Circuit Court of Appeals vacated a summary judgment order that upheld a civil commitment center’s policy which limited circulation of a detainee’s controversial newsletter among residents at the facility. The appellate ruling also altered the Turner standard to strike a balance to reflect differences between civil detention and criminal incarceration.

James R. Pesci is a civil detainee at the Florida Civil Commitment Center (FCCC), which has over 600 residents and is operated under contract by the GEO Group. For some years, Pesci had published a newsletter called “Duck Soup” that was highly critical of the FCCC, its policies and its employees.

To limit circulation of the publication, FCCC director Timothy Budz promulgated a policy in April 2009 that barred all residents from printing or copying Duck Soup. The rationale was that the newsletter disrupted order and discipline at the facility, and had a powerful adverse effect on the FCCC’s ability to rehabilitate civil detainees.

In one issue, Pesci described the Florida Department of Children and Families and its contractor, GEO Group, as a “white collared, criminal enterprise.” He ...

Transferred Prisoner May Sue Oklahoma Officials in Oregon Court

Transferred Prisoner May Sue Oklahoma Officials in Oregon Court

by Mark Wilson

In an October 9, 2013 ruling, the Oregon Court of Appeals held that Oregon courts have personal jurisdiction over Oklahoma prison officials with respect to claims brought by an Oregon prisoner transferred to Oklahoma.

In May 2007, Oregon prison officials transferred Liam O’Neil, aka Jacob Barrett, to the Oklahoma State Penitentiary (OSP) under the Interstate Corrections Compact. Soon thereafter, Barrett sent several letters and grievances to OSP Warden Marty Sirmons concerning his treatment and living conditions at the facility.

Oregon attorney Charles Simmons represented Barrett in several legal actions and regularly communicated with him by letter and telephone while he was confined at OSP.

In August 2008, Simmons sent Barrett legal mail containing attorney-client privileged materials. OSP Case Manager Estes intercepted and read the mail, stating, “This doesn’t look legal. I’m confiscating it.”

Barrett asked Estes and Sirmons to deliver his legal mail and explain why it had been confiscated. When they did not respond, he filed a grievance.

Simmons had previously verified to Oregon prison officials that he was a licensed attorney who represented Barrett. Nevertheless, Sirmons directed Simmons to explain how the materials he had ...

Former New Mexico State Senator Released from Prison

Former New Mexico State Senator Released from Prison

Manny Aragon, 66, a former New Mexico state Senate leader, was released from federal prison on December 5, 2013. Although most federal prisoners are sent to a halfway house to complete the remainder of their sentence, Aragon was released to home confinement at his house in Albuquerque.

“He’s still subject to our rules and regulations and accountability monitoring,” said Bureau of Prisons spokesman Chris Burke.

Aragon served three decades in the state legislature, rising to the position of Senate President Pro Tem, and was one of New Mexico’s most powerful Democrats. However, his lengthy political career was eclipsed by the sordid details of his downfall: A scandal that involved skimming $4.4 million from a project to build the Bernalillo County Metropolitan Courthouse. Aragon, who admitted taking $600,000 from the courthouse project, was one of several defendants prosecuted in the scandal.

He pleaded guilty to federal conspiracy and fraud charges in 2008 and was sentenced to 67 months in prison, plus a $750,000 fine and $649,000 in restitution. He served around 4½ years before being released.

Aragon was also known for flip-flopping on the issue of prison privatization ...

Eighth Circuit Upholds Injunction Over Cameras in Restrooms at Civil Commitment Center

Eighth Circuit Upholds Injunction Over Cameras in Restrooms at Civil Commitment Center

by Matt Clarke

In April 2013 the Eighth Circuit Court of Appeals upheld a preliminary injunction granted by a federal district court in a lawsuit challenging the placement of video cameras in bathrooms at the Iowa Civil Commitment ...

First Circuit Dismisses Appeal of Court’s Failure to Sanction Federal Prosecutor

First Circuit Dismisses Appeal of Court’s Failure to Sanction Federal Prosecutor

by Matt Clarke

On July 22, 2013, the First Circuit Court of Appeals dismissed an appeal by the Massachusetts Bar Counsel challenging the failure of a district court and a three-judge disciplinary panel to discipline an Assistant U.S. Attorney who allegedly withheld exculpatory evidence in a federal criminal case.

Jeffrey Auerhahn was a U.S. Department of Justice (DOJ) special attorney for the investigation and prosecution of Boston’s Patriarca crime family in the New England Strike Force’s Organized Crime and Racketeering Section. He worked closely with Boston police detective Martin Coleman.

In investigating the 1985 murder of Vincent Limoli, who worked for Patriarca soldier Vincent Ferrara, the Strike Force was able to develop an informant named Walter Jordan, who, along with Pasquale Barone, was seen with Limoli shortly before he was killed. In exchange for almost complete immunity and being allowed into the witness protection program, Jordan told Coleman and Auerhahn that Ferrara had ordered the hit on Limoli, Jordan had helped set up the hit and Barone had “whacked” Limoli.

Connecting Ferrara to the Limoli hit was crucial in prosecuting him on organized crime charges. Without evidence ...

Alabama Work Release Transportation, Medical and Drug Screen Costs Not “Incidental to Confinement”

Alabama Work Release Transportation, Medical and Drug Screen Costs Not “Incidental to Confinement”

by David M. Reutter

Alabama’s Supreme Court has held that the plain language of § 14-8-6, Ala. Code 1975 does not prohibit the Alabama Department of Corrections (ADOC) from collecting, over and above the 40% threshold established by that law, costs that are not incidental to a prisoner’s confinement – including transportation costs and fees stemming from participation in the prison system’s optional work-release program.

The December 6, 2013 ruling came in a class-action lawsuit that challenged the ADOC’s deduction of more than 40% of prisoners’ gross earnings for costs associated with transportation to employment, laundering work clothes, drug-testing fees and prisoner-initiated medical visits. [See: PLN, May 2008, p.38; July 2006, p.35]. Pursuant to § 14-8-6, Ala. Code 1975, the ADOC is authorized “to withhold up to 40% of an inmate’s work-release earnings for costs ‘incident to the inmate’s confinement.’”

The ADOC contended that it could make deductions for costs associated with those services beyond the 40% statutory threshold because they were not “incident to” a prisoner’s incarceration. The plaintiffs in the class-action suit argued such costs were incidental, and thus not subject to ...

Seventh Circuit Upholds Dismissal of Suit Over Placement on Suicide Watch

Seventh Circuit Upholds Dismissal of Suit Over Placement on Suicide Watch

by Matt Clarke

The Seventh Circuit Court of Appeals has affirmed the dismissal of a prisoner’s lawsuit over his placement on suicide watch and in administrative segregation.

Daryise L. Earl, a Wisconsin prisoner, filed a civil rights action pursuant to 42 U.S.C. § 1983 alleging that officials at the Racine County Jail were deliberately indifferent to his medical needs and violated his due process rights when they placed him on suicide watch following his conviction for first-degree intentional homicide, and required him to wear suicide-proof clothes to which he was allergic. Earl was on suicide watch for five days, then placed in administrative segregation for twelve days. During a later return to the jail for a hearing, he was again held in ad seg for seven days.

Jail officials claimed they had a policy requiring the placement of prisoners on suicide watch after conviction of a serious felony, until a mental health examination cleared them for general population. Earl alleged the suicide watch and stints in administrative segregation were in retaliation for false accusations that he had threatened guards at the jail.

Upon granting the defendants’ motion ...

Eighth Circuit Holds No SORNA Registration Requirement after Leaving U.S.

Eighth Circuit Holds No SORNA Registration Requirement after Leaving U.S.

by Matt Clarke

The Eighth Circuit Court of Appeals held in August 2013 that the Sex Offender Registration and Notification Act (SORNA) does not require a registered sex offender (RSO) who moves to a foreign country to notify the state of his change of address.

Robert D. Lunsford, a Missouri RSO, flew to the Philippines on a three-week round-trip ticket in 2011. He did not return to the United States or inform the Missouri sex offender registry of his change of address. He was arrested in the Philippines two months later and eventually deported to the U.S., where he was charged with failure to update his registration in violation of 18 U.S.C. § 2250(a).

Lunsford moved to dismiss the indictment on the grounds that SORNA did not require him to update his registration once he left the country; his motion was denied and he entered a conditional guilty plea. He then appealed the denial of the motion.

The Eighth Circuit observed that SORNA requires RSOs to keep their residency information current in each jurisdiction where they reside, are employed or are a student. An RSO ...

Fourth Circuit Finds PLRA Attorney Fee Cap Constitutional

Fourth Circuit Finds PLRA Attorney Fee Cap Constitutional

by David M. Reutter

The Fourth Circuit Court of Appeals held on November 1, 2013 that the attorney fee provision of the Prison Litigation Reform Act (PLRA) is constitutional. The ruling was in alignment with other appellate courts that have considered the ...

Alabama DOC Short Hair Policy Does Not Violate RLUIPA

Alabama DOC Short Hair Policy Does Not Violate RLUIPA

by David M. Reutter

The Eleventh Circuit held in July 2013 that an Alabama Department of Corrections (ADOC) policy requiring prisoners to maintain short hair does not violate their rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA).

The appellate ruling was entered in a lawsuit initially filed in November 1993; it was the third time the case had come before the Court of Appeals. The suit, filed by Native American ADOC prisoners, was on appeal following a bench trial in which the district court ruled in favor of the ADOC’s hair-length policy.

The Court of Appeals noted there was no dispute that the policy substantially burdens the religious exercise of Native American prisoners. It was also beyond dispute that the ADOC has compelling interests in security, discipline and hygiene within state prisons, and in the public’s safety in the event of escapes if prisoners could subsequently alter their appearance by cutting their hair.

The district court’s decision credited the ADOC’s witnesses who testified as to how the hair-length policy addresses the concerns of prison officials. Alternatives such as exempting Native American prisoners from hair cuts, requiring prisoners to ...

Texas: Clerk May Not Bill Defendant for Attorney Fees Not Ordered by Court

Texas: Clerk May Not Bill Defendant for Attorney Fees Not Ordered by Court

by Matt Clarke

The Texas Court of Criminal Appeals held last year that a district clerk may not send an indigent prisoner a bill of costs for court-appointed attorney fees in his criminal case when the court did not make a finding that he was able to pay the fees and never ordered them paid.

Pursuant to a plea bargain, Jefferie Anteries Daniel was convicted of forgery of a check in Bexar County, Texas in 2002. The trial court assessed court costs of $295.25 against him, but assessed no costs for a court-appointed attorney. Although it was apparent from the judgment that Daniel was represented by counsel, there was no indication the attorney had been appointed by the court.

More than nine years after his conviction, the Bexar County District Clerk sent Daniel a bill of costs in the forgery case that assessed both the $295.25 in court costs and an additional $7,945.00 in fees for an appointed attorney. Daniel filed a post-conviction petition for writ of habeas corpus, challenging the attorney fees being assessed without a court order and without a determination ...

Fifth Circuit: “Mailbox Rule” Applies to Texas State Habeas Petitions

Fifth Circuit: “Mailbox Rule” Applies to Texas State Habeas Petitions

The Fifth Circuit Court of Appeals has held that the “mailbox rule” of Houston v. Lack, 487 U.S. 266 (1988) now applies to determining the date when Texas prisoners file state habeas corpus petitions for the purpose of calculating the applicable period for the AEDPA’s one-year statute of limitations in which to file federal habeas petitions.

Kenneth Richards, a Texas state prisoner, delivered a state petition for a writ of habeas corpus to prison authorities 329 days after his state criminal conviction became final. The court clerk did not stamp the petition as being filed for another 37 days. Twenty-two days after the petition was denied by the state court, Richards mailed his federal application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

The respondent filed a motion for summary judgment based on untimeliness grounds. The district court granted the motion and dismissed the petition, and Richards appealed.

“A person in state custody has one year to apply for a writ of habeas corpus in federal court. 28 U.S.C. § 2244(d)(1). The one-year period begins to run, as relevant ...

Fifth Circuit Holds Prison Guard’s Injury-Causing Reckless Driving States Nonfrivolous Claim

Fifth Circuit Holds Prison Guard’s Injury-Causing Reckless Driving States Nonfrivolous Claim

by Matt Clarke

The Fifth Circuit Court of Appeals held last year that a district court erred when it dismissed a prisoner’s claim that he was severely injured when a guard driving a transport van slammed on the brakes, throwing the prisoner into the van’s security cage.

Texas state prisoner Bruce A. Rogers was being transported from the Wayne Scott Unit to the Houston Veterans Hospital in June 2008 when Jose L. Garcia, Jr., the guard driving the van, slammed on the brakes. Rogers was seated on a bench perpendicular to the direction of travel. He was handcuffed and shackled with leg irons connected to the handcuffs by a chain, which prevented him from bracing himself. There were no seatbelts for prisoners.

According to Rogers, he hit the barrier of the van’s security cage head-first and suffered head, neck, spinal, vision and hand injuries, including a three-inch laceration to his scalp that bled profusely and was “gouged open to the bone.” Instead of checking on Rogers, the transport guards continued to the hospital.

The examining physician told them to take Rogers to the ER so his open, bleeding ...

Courts Struggle with Child Pornography Restitution Following Supreme Court Ruling

Courts Struggle with Child Pornography Restitution Following Supreme Court Ruling

The Seventh Circuit Court of Appeals is among the latest federal courts to tackle the issue of restitution for victims of child pornography – an issue addressed in a recent U.S. Supreme Court decision that legal observers say only muddies the waters for victims who attempt to recover damages from defendants in child porn cases.

The high court’s ruling prompted quick action by two U.S. Senators to craft legislation designed to fix the perceived problem, but their proposed bill remains stalled in committee.

In November 2012, the Seventh Circuit held that victims in a child pornography case may intervene to defend the award of restitution in their favor, but only at the appellate level and only if they can prove that they suffered damages as a direct result of a defendant’s actions.

The appellate court issued its decision in the appeal of Christopher L. Laraneta, who was sentenced by an Indiana federal district court to 30 years in prison and lifetime supervised release after pleading guilty to seven counts of violating federal child pornography laws. The district court also ordered him to pay $3.4 million in restitution ...

Prison Labor Boosts Wal-Mart’s Profits Despite Pledge

Prison Labor Boosts Wal-Mart’s Profits Despite Pledge

by Derek Gilna

The supplier pledge for America’s largest retailer states: “Forced or prison labor will not be tolerated by Wal-Mart. Wal-Mart will not accept products from Vendor Partners who utilize in any manner forced labor or prison labor in the manufacture or in their contracting, subcontracting or other relationships for the manufacture of their products.”

However, the company has become a retailing behemoth in the United States and abroad by carefully watching its bottom line and squeezing every ounce of profit out of each component in its supply chain. Recent developments, which include reports concerning the use of prison labor and alleged abuses in labor practices by its suppliers, have called into question whether Wal-Mart is the good corporate citizen it claims to be.

One area in which Wal-Mart has profited through the use of prison labor is in “demanufacturing.” That term refers to the disposal of millions of dollars’ worth of “customer returns, buy-backs, over-stocks, shelf-pulls, scratch-and-dent, and excess inventories” that all large retailers must contend with, according to Al Norman, the founder of Sprawl Busters. What separates Wal-Mart from other retailers is its use of what amounts to ...

$2.85 Million Jury Verdict for Suicide at Missouri Jail

$2.85 Million Jury Verdict for Suicide at Missouri Jail

by Derek Gilna

On January 18, 2013, following a five-day trial, a jury in the U.S. District Court for the Eastern District of Missouri returned a verdict of $2.85 million against the City of Sullivan, finding that negligence ...

Incarceration is Excusable Default in New York Housing Court Proceeding

Incarceration is Excusable Default in New York Housing Court Proceeding

by Mark Wilson

On October 7, 2013, the New York City Housing Court held that a tenant who could not attend court proceedings due to incarceration was entitled to relief from a default judgment.

Otto Thompson, 57, who is disabled, had lived in his rent-controlled apartment in New York City since 1963. He paid the $450.25 monthly rent from his SSI benefits.

In 2006 or 2007, Jose Salmon became Thompson’s roommate and remained in the apartment after Thompson was arrested and incarcerated at Rikers Island pending criminal charges in October 2008. The landlord then initiated eviction proceedings, alleging that Thompson had illegally sub-let his apartment to Salmon.

Thompson was ultimately convicted and sentenced to five years in prison. After several continuances, the Inquest Court signed a judgment of eviction on February 8, 2010, and a warrant of eviction was executed on April 30, 2010.

Following his release, Thompson moved for relief from default on April 13, 2013. Finding that “incarceration can be the basis for excusable default,” citing Benado v. Antonio, 10 A.D.2d 40, 197 N.Y.S. 2d 1 (N.Y. App. Div. 1st Dep’t ...

Recidivism Performance Measures for Private Halfway Houses in Pennsylvania

Recidivism Performance Measures for Private Halfway Houses in Pennsylvania

by Alex Friedmann

In 2013, Pennsylvania Department of Corrections (DOC) officials announced they would provide financial incentives to privately-operated community corrections facilities – halfway houses – that reduce the recidivism rates of offenders released from those facilities.

The unique initiative followed a DOC report that found high recidivism rates in the state, with prisoners released from halfway houses (most of which are privately-operated) having higher rates than those released directly from prison. For example, for 2010-11 releasees, the one-year overall recidivism rate was 40.5% for those paroled to a community corrections facility but only 32.7% for those released from prison.

An average recidivism rate based on data from the report was established as a baseline, and privately-operated community corrections facilities are required to meet the baseline rate within a certain range or risk losing their contracts. Those that achieve rates at least 10% lower than the baseline will receive a financial bonus of one percent of the contract amount.

“It’s not unreasonable for us to expect them to have an impact on crime, because that’s what we’re paying them to do,” said Pennsylvania Department of Corrections Secretary John ...

Some GPS Monitoring Devices Capable of Audio Recording

Some GPS Monitoring Devices Capable of Audio Recording

by Christopher Zoukis

Civil libertarians and prisoner advocacy groups have expressed shock and outrage at the discovery that some Global Positioning System (GPS) tracking devices, used to monitor the movement and whereabouts of many pre-trial defendants, parolees, sex offenders and other persons, function like cell phones and are capable of recording conversations without the knowledge or consent of the people wearing them – including confidential conversations with their attorneys.

The audio recording technology first came to light in Puerto Rico, when defense attorney Fermín L. Arraiza-Navas asked a client during a meeting in San Juan about the GPS ankle bracelet he was wearing as a condition of his bail.

“They speak to me through that thing,” the man said.

During a court hearing on a motion subsequently filed by Arraiza-Navas to have his client’s GPS device removed, a technician for SecureAlert, the company that manufactures the monitors, revealed their true capabilities. The technician – who testified through the cell phone feature of a GPS ankle bracelet – told the court that although the device is supposed to vibrate and give an audible warning when activated, it can be turned on at ...

Indiana Supreme Court Holds Agreed Court Order with Prosecutor is Binding on DOC

Indiana Supreme Court Holds Agreed Court Order with Prosecutor is Binding on DOC

by Matt Clarke

The Supreme Court of Indiana has held that a court order regarding whether a sex offender could be retroactively classified as a Sexually Violent Predator (SVP), and required to register as a sex offender every 90 days for life, was binding on the Indiana Department of Corrections (DOC) even though the DOC was not a party in the case.

Ronald G. Becker was convicted of Class B felony criminal deviate conduct and sentenced to six years in prison. He registered as a sex offender after his release; at that time, Indiana state law required him to register annually for ten years.

The law was later amended, instituting heightened registration requirements for SVPs. The amended law required that SVPs register every 90 days for life and made criminal deviate conduct a conviction which established SVP status as a matter of law.

After Becker was notified that he was required to register every 90 days, he petitioned the sentencing court for an order relieving him of the additional SVP obligations. The court found that SVP status did not exist when Becker was sentenced and retroactively classifying ...

Some States Refuse to Implement SORNA, Lose Federal Grants

Some States Refuse to Implement SORNA, Lose Federal Grants

As of August 2014, twenty-eight states were still struggling with the costs and bureaucratic nuisance of implementing the Sex Offender Registration and Notification Act (SORNA) – also known as the Adam Walsh Act – eight years after it was passed by Congress. Another 17 states were in compliance and five have flatly refused, mostly for political or fiscal reasons.

But only one state – Nebraska – has stated a principled opposition to SORNA’s lifetime registry requirement for juveniles. State Senator Amanda McGill, a member of the Nebraska legislature’s Judiciary Committee, said that SORNA as currently written could force people onto the registry who don’t belong there.

“We may be putting resources into people that don’t need it,” she said, “and possibly ‘scarlet-lettering’ them.”

SORNA, which had a soft deadline of July 2011 for implementation, requires that states adopt certain provisions for their sex offender registries or face significant cuts in federal Byrne Justice Assistance Grants (JAG), which are used to fund local courts, crime labs, prisons and jails, and other law enforcement programs. Of the states that missed the deadline, most agreed they would apply to use JAG money ...

Volunteers Help Prisoners Vote at D.C. Jail

Volunteers Help Prisoners Vote at D.C. Jail

For most prisoners in jail awaiting trial, voting is an afterthought. But volunteers at the District of Columbia jail manned the polls for the first two days of early voting in October 2012 and instructed prisoners on how to fill out ballots.

After recording prisoners’ names and precincts, the volunteers flipped through stacks of absentee ballots and explained how to darken the bubbles to record their votes.

“Remember to vote both sides of the ballot,” advised poll worker Arlin Budoo. Nearby sat a stack of “I Voted” stickers.

There are an estimated 700,000 people across the country sitting in jail pending trial or serving time for misdemeanors, all of whom can vote, provided – in most states – that they haven’t been disenfranchised by a past felony conviction. The problem, according to Marc Mauer, executive director of The Sentencing Project, is that most jails aren’t doing what volunteers in Washington, D.C. do to ensure that eligible prisoners vote.

“In the vast majority of jails there’s absolutely nothing being done to make that happen,” he said.

The Sentencing Project reported that about 2.5% of the total U.S ...

News in Brief

News in Brief

Brazil: Brazilian authorities announced on January 15, 2014 that an investigation would be initiated into atrocities at the infamous Pedrinhas penitentiary. Bloody battles between rival prison gangs resulted in complaints of mass rapes of women visitors and the posting of a video depicting decapitated and tortured prisoners. In 2013, 60 prisoners died in uprisings at the facility. “The state urgently needs to investigate these crimes, restore order in the prisons, and ensure the inmates’ safety,” said Maria Laura Canineu, director of Brazil’s Human Rights Watch.

California: On January 14, 2014, U.S. District Court Judge Lawrence J. O’Neill ordered a week-long suspension of federal criminal case hearings for prisoners at the Fresno County jail due to a flu outbreak. O’Neill’s order noted that one prisoner who had appeared in his court had subsequently been diagnosed with H1N1 influenza and another had died of flu complications. The Fresno County Sheriff’s Office quarantined hundreds of prisoners in response to the outbreak, which killed at least 10 people in the central San Joaquin Valley. The jail houses more than 2,900 prisoners; at the time of O’Neill’s order, 135 of those prisoners faced federal charges.

Florida: A prison guard ...


 

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